27 Mont. 486 | Mont. | 1903
delivered the opinion of the court.
In 1894, Leb C. Harmon recovered a judgment in the district court of Custer county against D. H. Eussell, and bad execution issued thereon, and placed in the hands of the appellant, Hawkins, who was the sheriff of that county, for service. The shexdff levied the same upon 78 tons of hay, a houses a barn, and two outbuildings. As soon as she became aware of such levy, Mary
One of the material issues raised by tbe pleadings and contested at the trial was tbe value of tbe property seized by tbe sheriff. Clark and Dugan each testified that be knew tbe plaintiff’s ranch, knew something of tbe character of tbe bay grown thereon, and the value of bay of that general character at tbe time of the levy and sale by the sheriff. Tbe witness Zeigler testified that lie bad bad some experience in constructing such buildings as tbe barn in controversy, bad seen the one seized by tbe sheriff, and knew something of its value. If is true that under a severe cross-examination these witnesses each modified bis direct testimony somewhat. All of this evidence was objected to on the ground that the several witnesses bad not qualified as experts. Upon this phase of tbe case we content ourselves with the citation of decisions from this, court, though numerous cases might be cited in support of the proposition that with reference to those matters concerning tbe ordinary affairs of life, where, from tbe very nature of the question involved, its answer necessarily depends largely upon mere opinion or .judgment, tbe opinion of a nonexpert witness may properly be given in evidence; and this has been adjudged to include questions of distance, weight, value, etc. (Holland v. Huston, 20 Mont. 84, 49 Pac. 390; Emerson v. Bigler, 21 Mont. 200, 53 Pac. 621.) It is only in those cases where a previous habit of study is essential to tbe formation of tbe opinion sought to> be put in evidence that all but experts are excluded from giving in evidence an opinion. (Spear v. Drainage Commissioners, 113 Ill. 632.)
Tbe witness Russell was permitted, over tbe objection of the defendant, to state where the plaintiff secured tbe lumber which went into1 tbe construction of tbe buildings, what it cost, and that it had been paid for by tbe plaintiff. The patent from the government was introduced in support of the plaintiff’s claim
Particular stress is laid upon tbe alleged error of tbe court in giving instruction No. 12, upon tbe theory that by tbe last sentence of that instruction' tbe court assumed to' tell the jury what tbe evidence on one particular feature of tbe case was, and to that extent invaded tbe province of tbe jury. But, read in connection with, and in the light of, the first portion of the instruction, and considering tbe instruction as a whole — which must necessarily be done — the apparent defect disappears altogether, and the instruction,' though inartifieially drawn, correctly states the law.
We bave examined the other errors assigned, and find no merit in them. The evidence is- amply sufficient to sustain the verdict for the amount returned.
Before the bearing was bad in this court, tbe plaintiff and respondent died, and T. J. Porter, administrator of tbe estate of said Mary Bussell, deceased, was substituted as plaintiff and respondent.
Tbe judgment and order appealed from are affirmed.
Affirmed.